Thoughts from the interface of science, religion, law and culture

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

EVENTS

Bill Introduced to Fix California’s Rape Law

In the aftermath of the appalling outcome of a rapist’s guilty verdict being overturned because the victim was not married, California legislators have submitted a bill to fix that loophole and ensure that rape is rape regardless of the marital status — or gender — of the victim.

Assembly Speaker John A. Perez (D-Los Angeles) has joined with a Republican lawmaker to introduce legislation that would close a legal loophole that led a state appeals court to overturn the rape conviction of a California man.

Citing a 19th century law, the Los Angeles-based 2nd District Court of Appeals ruled last week that a man who impersonates someone in order to have sexual intercourse may be guilty of rape only if the victim was married and the man was pretending to be her husband.

“This is an appalling failure of justice, and I am committed to acting swiftly to prevent a similar occurrence in the future,” Perez said in a statement. “Like every Californian, I was deeply disturbed by this decision, and my colleagues and I will work on eliminating this glaring loophole in state law and protect Californians from such a gross violation.”

The legislation, AB 65, would expand the definition of rape to include cases where a perpetrator impersonates a person’s boyfriend or girlfriend.

Incredibly, there was a bill in the last legislature to fix this problem as well but it never made it out of committee. I suspect with all the public attention to this travesty of justice recently, this time the bill will pass. I certainly hope so.

Assuming there are no poison pill riders and that this isn’t attached to some other Democratic legislation,my guess is few to zero. The Dems have a supermajority, so passage is not an issue. Frankly I’m a bit surprised the Dems even bothered to find a GOP co-sponsor. That the GOP wanted to co-sponsor it probably indicates that the GOP wants to share the credit gained by supporting it.

I think this still doesn’t go far enough. Impersonating any other actual person shoudl be grounds or we’ll end up with quibbling along the lines of “the guy I was impersonating wasn’t her boyfriend, exactly.”

Here is a link to the bill text. Ace, you are right, this still only criminalizes the deception if the person you impersonate is “spouse, cohabitant, fiancé,
fiancée, or someone with whom the victim has a dating relationship, as defined in subdivision (f) of Section 243.” It leaves open the possibility that I go home with stranger A, stranger B sneaks in and has sex with me, and legally it isn’t rape.

What’s really annoying is that it would be so easy to fix right. Here, I’ll do it: “Where a person submits under the belief that the person committing the act is the victim’s spouse,someone else and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.”

I wouldn’t be surprised if some republicans found a reason to vote against it. I’m sure there are at least a few republicans in the CA legislature who might not consider impersonation to be a form of “legitimate”‘or “forceable” rape. What if a woman gets pregnant by the impersonator? Wouldn’t that be Gawd’s will? A rape conviction might make it hard for him to sue for his fetal visitation rights!

I’m sure there are at least a few republicans in the CA legislature who might not consider impersonation to be a form of “legitimate”‘or “forceable” rape.

Oh, I’m sure you’re right about their personal feelings. I’m not sure you’re right in thinking they will vote that way. I’m betting most of the politicians who object to it due to some misinformed puritanical ideas about rape will still want to be seen to be supporting it, especially if passage is a foregone conclusion.

@ 7: If a person impersonates a sports figure and a person sleeps with the “sports” figure because he/she believes the person is the “sports” figure, is that rape? All other aspects are consensual, everyone is sober and conscious.

Why didn’t the court of appeals order the legislature to eradicate this law? It’s clearly unconstitutional and if there’s no higher court precedent ruling it is legal, don’t they have the authority to overturn this law?

The Court of Appeals cannot “order the legislature” to do anything. They can ASK, which they have done several times, for the legislature to clarify the law so that the courts will know the will of the legislature.

As I understand it, the failure to pass this bill in the last legislative year was a cost-saving measure, in service of the legislature’s desire to not “create any new felonies” because the prisons in California are already overcrowded. Letting out a few pot smokers or embezzlers and locking up rapists instead doesn’t seem to have occurred to them.

The Court of Appeals cannot “order the legislature” to do anything. They can ASK, which they have done several times, for the legislature to clarify the law so that the courts will know the will of the legislature.

Citation requested. It’s my understanding that appeals courts not only have the power but the constitutional obligation to strike down laws which are unconstitutional.

@Michael Heath: If the court struck down the law on equal protection grounds or something, it would just mean that impersonating someone’s husband was also ok. Constitutional rights don’t mandate that any particular act carry criminal penalties and the court can’t decide to send someone to prison even if they did nothign that violated the law as written.

I’m beyond words. Not about the introduction of the bill-but of the law used to justify the overturning of the conviction. While I applaud the legislator for attempting to fix this-I fear something else…

The states are rife with little snippets like that law, written in a backward time and usually justified by religious sentiment rather than common sense or secular humanist values.

Worse, whenever such a law is singled out for correction and/or deletion, it turns into a shitfight by (usually) the religious right.

This particular law should not even exist. Last I checked, “rape” is defined commonly as the forcible perpetration of sexual acts by one individual on another. No focus on anything other than the act itself. Yes, you can rape your husband-and he can press charges.

It’s disgusting to think we’ve gotten to the stage where only intense public attention lends us hope that our public officials will act like decent human beings. If when not closely scrutinized they’re such amoral monsters why do we keep electing them? Is this as good as we deserve?

@17 If you only consider rape to be forcible (which I don’t, there are non-forcible rapes for example when the victim is under the age of consent, drunk, etc) then a lot of rapes and sexual assault are not no longer crimes. I’m pretty sure that isn’t what you mean but that’s what the religious right means when they start wailing about restricting access to abortion to only forcible rape. Rape should be based on consent not force,

That;’s what this case boils down to: what kind of consent matters. The victim in this case did consent to having sex but she thought she was consenting to her boyfriend not to some stranger who sneaked in through the window (because in the dark when you’re barely awake isn’t when you are most observant). That’s what makes this case so appalling. That the court tossed the conviction of someone who fully intended to rape this woman when he broke into her house but because for a moment she thought he was someone else he gets out of prison.

Poose: they could always create a Commision (they love doing that, don’t they) to read through as many of the laws as they can and then recommend that a certain subset of them be repealed. I think I recall something like that being done in Texas a while back, but since they recommended getting rid of the sodomy laws the Morons sabotaged the effort.

Are there any other grounds to bandjax the clown who raped ‘her’?
To allow such a critter to walk away scot free and fluffy tail high would be a travesty and the justice system must be so very ashamed of themselves in 2013

As for the lawyer who pulled that obscure bit of outdated bollix out the book…I wonder if he feels proud of himself?
One can only hope he does not have a daughter!
This is not about the right to representation when the tale is told as it was in court it is class A arseholeship!
Certainly preserve the lowlife’s rights by all means but to let him get away with what he openly admitted himself…that is just dereliction of the duty to the public.

Eric @7 is correct–there’s still a loophole that makes it ostensibly legal to impersonate another person who is involved in a hook-up, rather than a ‘dating relationship’. The referenced law describes the latter as:

So if the victim, say, goes back to the apartment of a bar hook-up, falling asleep after consensual sex, and then in the middle of the night assumes that the person getting into the bed with her is her prior partner looking for Round 2, but later discovers it was his roommate, she can’t call it rape (even if she said, “Tommy, that you?” and he says, whispering, “Yeah.”)–because she and Tommy were not already in a ‘dating relationship’.

Sadly, in this case it might be best to not let the perfect be the enemy of the good–accept the current wording (unless an amendment can be introduced during committee by an able legislator) and then try to close the last loophole, there.